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tv   [untitled]    November 24, 2010 5:30am-6:00am PST

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matter with the landlord, but the landlord was reluctant to sign off on our conditional use permit because of the fact that we were using that as leverage in the unlawful container action. we had basically a green light from the planning department, but all we needed was the owner to sign off on it. they were unwilling to do so. we were trying to work with them this whole time. that was basically the gist of what we were not able to -- why we were not able to file the action in the 15-day window. for that reason, i strongly urge the board to grant our jurisdiction request. thank you. commissioner garcia: what do you gain if we give you jurisdiction? >> what we gain is that we would properly be able to flush out the issues of what was happening during that time. we were not allowed to even address the matter, as it were.
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commissioner garcia: but if the landlord is not willing to have you continue and you need the landlord, how do you ever prevail? what happens? how do we help people like you? i am not opposed to giving jurisdiction. i am just not clear on what we achieved by doing so. >> i believe that if we were able to appeal, i think the issues regarding who is fined would be able to get fleshed out correctly. i do not believe that has been isolated. commissioner garcia: that would be one reason. all right. were you also, at that time were sometime in the future -- are you going to try to get this board to produce the fines that have already been assessed against ike's? or is that not part of the some
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action? here is my understanding. $250 per day has been accumulating against this operation. it is within the power of this board to reduce that to $100. are you aware of that? >> yes. we would be seeking any and all sorts of reductions at that time as well. commissioner garcia: thank you. president peterson: ok, thank you. >> is there a representative here from the landlord? please step forward. >> i don't have one with me. michael what telwattell. i represent demna drnman drobic.
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the use permit was a subject of the unlawful detainer from the beginning. one of the reasons mr. drobisch used the unlawful detainer is ike's place had misrepresented the use of their premises in obtaining the use permit the got. they got a use permit for a copy shop and were operating a sandwich shop where they had prepared food and cooked food and that sort of thing. the unlawful detainer was filed march 23, 2010. it had been an issue which ike's place and their attorney had been aware of since that time. there was nothing new. there was no surprise. my understanding is that bike path place attorney -- is that ike's place's attorney was aware of that at the time. the board needs to be aware of that issue. commissioner garcia: were you through?
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>> yes. commissioner garcia: denam drobisch has the least and is subletting? or is he the owner? >> he is the owner. it was jerry chow who had the initial lease, and ike's place is a sublet of mr. chao. >> good afternoon, president peterson, members of the board. scott sanchez, planning department. thank you for your kind comments. i look forward to coming to appear before this board and will endeavor to continue coming here. on the matter before you, the jurisdiction request, here is a timeline of events that might help where we are and how we got here. at the end of march, we received a complaint that ike's was operating illegally a self-
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service restaurant. we issued an enforcement notification at the end of april, april 21. during may, the project sponsor, i, made contact with the department, discuss possible solutions. in may, there were thinking about relocating to a new location. the submited a conditional use operation in september to try to legalize it in place. two days after that, our department staff realized the authorization form did not have the honor as authorizing it. it turned out to be the leaseholder, not the one who owned the larger commercial lease. he was subleasing it to a ikes place. the owner did not authorize a conditional use authorization. in the middle of july, july 13, we issued a notice of violation and penalty. that does carry with it a penalty of $250 a day.
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this board can come upon a pill -- can, upon appeal, reduce that to no less than $100 a day. the 15 day appeal period began on july 28, 2010. during this time and august, ike's was a fairly large story. it was in "the new york times" and the newspaper. they could not get the owners authorization. when they closed in september, there were roughly 40 days when they were operating in noncompliance. at the beginning of october, october 7, we sent a reminder, and administrative reminder. it was that which triggered the jurisdiction request, the filing on the 21st. in regards to whether or not there was proper service on that, all the notifications have been properly received by ike's
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place. the first notice, beginning with the enforcement notice sent out in april -- that describes the process. you are subject to penalties. you have an appeal right. and we do send certified letters out. you did receive a certified it receipt that ike's place received it on july 14. our department received this back on the 15th. commissioner fung: would you put it on the oversight -- on the overhead? >> we have the return receipt that shows it was received by ike's place, and i believe it was signed by an employee. with that, i will answer any questions. vice president goh: it is the department's position that the 15-day period ran may 5, or
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something? >> it was between july 13 and july 28, the 15-day period that the permit holder could have requested appeal on the notice of violation. vice president goh: thank you. president peterson: can we try to see the signature line again? >> sure. can i have the overhead, please? that is what we had received. president peterson: thank you. >> it is my understanding ike's is now operating at a new location. i think commissioner garcia pip question of the use of the jurisdiction request -- i see nothing beyond if this board were to take jurisdiction and reduce the penalties. but i do not see how one could find it was not in violation. it was clearly in violation at the time. >> is there any public comment
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on this item? seeing none, commissioners, the matter is submitted. commissioner garcia: the reason i might be willing to -- that i personally would be willing to grant jurisdiction has to do with the fact that in addition to other considerations we have a letter from the office of economic work force and development. we just got it. basically, what it says is that this operation was very popular. and when all these problems arose, they were overwhelmed with paperwork. i want to make it clear if this board were to vote for that, the very best we could do would be to reduce the fine. i do not know what the requestor wants beyond that, but if that is what they want, i would consider it reasonable. i would consider it reasonable to entertain arguments having to do with that. president peterson: could we
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address reduction of fines tonight, or would you have to reschedule? >> the matter before you is simply whether you want to entertain an appeal. commissioner garcia: in the absence of any other comment, i would so move, and we will see where that goes. >> you are motioning to grant jurisdiction? commissioner garcia: yes, thank you. commissioner fung: i do have a comment, a little bit late. let it be noted that i think noticed was appropriate -- notice was appropriate. i am willing to vote with granting only as a matter of potential equity, given the fact that the fines are so great.
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>> any other commissioner comments? >> on that motion from commissioner garcia? commissioner fung: aye. vice president goh: aye. president peterson: aye. commissioner hwang: aye. >> thank you. the boat is 5-0. jurisdiction is granted and a new 15-day appeal period shall be opened. president peterson: i am wondering if you have been able to confirm whether 421 is available? >> it is available. president peterson: thank you. just to let people know, we have to keep the aisles clear. if you cannot find a seat, we have to ask you to move to the overflow room, room 421, just
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down the hall. if you could call ite 5m 5a, please. >> : eye toa an fived -- calling items 5a and 5b. the appellants are the cane and tutoring centers service and the chinese gospel church -- are the canaan tutoring centers service and the chinese gospel church. it is protesting the issuance on september 15 of a permit to alter a building to a medical cannabis dispensary in a former chiropractor's office. it is application no. 2009/ 12/03/2572.
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president peterson: we are combining these into one case. we will start with whoever is here to represent caanan tutoring. please step forward. >> go ahead. >> my name is ross moody. i am here to speak on behalf of caanan tutoring service. i am a 20-year resident. i have three kids in public school. i married a native. i was lucky enough to do that. it is working out great. i want to talk about what this appeal is not about. what this appeal is not about is the pros and cons of medical marijuana, medical cannabis. i voted for proposition 215 back in the day. it has been the lot in the state
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for 20 years. i personally support the right of people to use medical cannabis to assist them in staying healthy. but what this appeal is about is san francisco's policy of where to locate medical cannabis dispensaries. the board of supervisors has seen fit to protect a zone around a medical cannabis dispensary. it really relates to the secondary market for marijuana. marijuana makes medicine, and i am not here to dispute that. but so it does toxic content. you can get a script for that at the walgreen's, walk for blocks, and sell it in the tenderloin. we have to address the reality of the fact that these substances can be used for medicine and also for recreational purposes. what is out there in san francisco? the board of supervisors has enacted planning code section
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790141. this says you cannot open a medical cannabis dispensary within 1,000 feet of a school, a recreation building which primarily serves miners, or a public facility which primarily serves minors. they have created a safe zone where you look for these businesses that primarily serve minors. what happened here? in this case, the process of enforcing and implementing section 790141 completely broke down. the planning department looked at the businesses and entities in 1,000 feet. it analyzed a code section which did not exist. it failed to address public safety concerns of the police, including a specific request by the captain of taraval station that the permit be denied. that came in the report. we received a letter from
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taraval station. the process itself, where many people who came to -- their first experience to government, to accessing their government, people who do not speak english came to the condition meeting and receive inadequate translation services. it was a one-way street for these people. they could stand up for public comment, but there were not able to hear what the commissioners were saying. that was not translated to them. let me go into this a little bit more specifically. first, the grace center is around the corner from this site. it has been there from 1983. it is a licensed day care. by definition, it is a public facility that primarily serve as those under the age of 18. there is such a facility within 1,000 feet. you cannot site and mcd there.
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planning completely missed this. it is not even mentioned in their report. this is the easiest way to reverse this appealed -- excuse me -- to reverse this permit. you cannot grant it due to the existence of this entity there. secondly, the tutoring centers and the dance school -- those are right within 1,000 feet. although the petitioner, or the permit holder, has said he spent 15 months looking for the site for this, he picked a spot next to a church, two doors down from a tutoring center, across the street from a child dance studio, and two blocks from another infant center as well. if you look at the definition of recreation that has been used by the board, by the planning department, they talk about counseling, recreation, cultural
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activities. are these things not occurring at a dance school or a tutoring facility? i submit to you that they are. if you believe that to be true, you should reverse this permit. i talked about public safety a little bit, and i implore you to read the letter of captain schmitt. this is not an anti-canada's rant. it talks about the nature of the neighborhood, the number of schools, the number of parks, the number of kids who go to the 7-eleven next to the site every day. it suggests there is going to be a secondary market out there as a result of opening this facility. how often do you think planning gets a letter from the police that says, "please do not issue the permit"? i watch the san francisco government channel all the time. i have never seen it. i would like to talk about the
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other breakdown of the problem, which is that there are so many problems with that report. it cites a subdivision of the code that does not exist. what does that tell us? it tells us that no one even opened the code. if you open the code and look for subdivision f and it is not there, you do not cite it. maybe you drop a footnote that says, "i think there is a typo," but you do not say that all the requirements in subdivision f are met. what does this do to public participation? if you do not want this facility open, how do you answer something that does not exist? how do you read the report and say "i disagree," when you cannot even look at it yourself? this is a very serious problem. we take problems very seriously in san francisco, and for good
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reason. this is a place where we have open government, where we have a very rigorous planning code. and we expect our public servants to do a good job in translating it, in analyzing it, and giving us the opportunity to company and be heard. and in this case, it completely fell apart. i asked you on that basis to reverse this permit. [applause] >> thank you. commissioners? vice president goh: i have a question for mr. moody. you mentioned grace infant center around the corner. how many children are cared for their? >> i believe there are 13 children cared for theire. vice president goh: thank you.
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>> i would ask folks who are standing along the wall to please take a seat or move into the overflow room. we have to abide by fire requirements. if you have a seat next to you, please raise your hand so someone can find it. thank you very much. we will now here for mr. davis from chinese gospel church. >> good evening. my name is russell davis. i represent the chinese gospel church. in an effort to avoid repeating what is in the briefs, i would like to begin with anecdotal evidence. we as a society keep telling our kids to just say no to drugs. we do it on tv. we do it on radio. we do it on the internet, social media, facebook, etc. we need to reconcile this desire to keep kids away from drugs with the proliferation of mcds
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in the city and county of san francisco. printing a license in this case is inconsistent with the message we tell our kids about drugs. this contradiction should be readily apparent. my suggestion is that the balance of equities fall on the side of the children and to revoke this particular permit. with that in mind, i will try not to repeat the points made by mr. moody. i do want to say that i agree with him that reference organizations, meaning think- tank learning, grace infant day care, and others, are literally covered by the law at issue. any mcd cannot be legally permitted within 1,000 feet of these organizations. the code defines recreational buildings to include uses that provide social, fraternal, counseling, or recreational services to the community. it includes private non-
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commercial lodges, meeting halls, recreation buildings, or community facilities not publicly owned. without a doubt, the reference organizations primarily serve children under 18 years of age. there is no requirement in the planning code that they be state license. my client, the chinese gospel church, meets this issue. it provides social counseling and recreation gathering services to the sunset community. it is private. it is a non-commercial facility where people meet regularly. it is open to the community and not publicly owned. these facts are undisputed. they are not controverted. hence, the permit to operate the mcd in that particular location should be revoked or should not have been granted in the first instance. in this regard i can only characterize the planning commission's brief filed in support of the permit as being
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otherworldly. it attempts to pigeonhole various organizations into categories that exclude them from the explicit protection given them under the planning code. yet it utterly fails to recognize or argue against the fact that these licensed organizations serve children under 18 years of age. however, even if the board -- this board things that they are not -- the organizations are not literally covered by the law, they certainly come within the spirit and m bit of the law. -- ambit of the law. the comply substantially with the law, and that should be sufficient. moving on, much has been said about serving the needs of the chronically sick in the sunset district. however, there is no evidence before the board of a number of truly sick people needing and = mcd in the sunset district.
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anecdotally, it is common knowledge that anyone can get a prescription for marijuana in this city. the convenience of those people should not concern the sport. as for the truly sick, there is no reason whatsoever why they cannot get their drugs delivered. they could simply take the l or the k downtown to ocean avenue where there are already too licensed -- two licenced mcds. the idea that we need another in a sunset district -- in the sunset district is a canard. the people who claim they need the drugs are already getting them. before discussing any substantial issues of would like to bring up a couple of procedural matters. one was mentioned by mr. moody. the permit was initially
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approved under a non-existent law. declarations that were attached , whatever you wish to call it, were not attested to properly and should therefore be annoyed -- be ignored. the proposition fails to regard our argument on the spirit of the law. therefore, my view is they have waived their argument. furthermore, the transcripts that were provided were edited. therefore, they are not true and accurate representation of the hearing. therefore, they should be ignored. with regard to some of the cases that we cited, i do not want to beat this to death, but the cases stand for the proposition that it makes sense to restrict businesses that are intrinsic draws for children. that would certainly include by clients. segregating adult businesses from residential areas and
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schools and placing them in locations where they do not affect the moral climate of the community decreases the problems of parents of neighborhood children, littering of paraphernalia, loitering, and visual blight. for these reasons, my client is simply asking this board to revoke the permit that has been granted. i will take questions, and i would like to reserve any additional time that i have not used for rebuttal. >> i am sorry. that is not allowed. >> ok. i can take questions. none? >> thank you. please hold your applause. no applause. before we move on, i understand the headset's provided for translation have not been working properly. if you come back, we can try to rearrange the room a little and try to provide translation.
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>> [speaking chinese] president peterson: i would ask if people might be able to move their seating arrangement a little bit to accommodate, we are going to try to cluster folks who need translation services on one side of the room. we would be very appreciative if you could help accommodate changes in seeding. -- seeking -- seating.
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i will take this opportunity to express appreciation for the volunteer translators here this evening. we very much appreciate your assistance. mr. saint-pierre, when you are ready, you can step forward. we will be ready for you in a moment. >> i would like mr. sanchez to speak before myself since he is the actual respondent. president peterson: he will speak after you. >> ms. leong, are we ready? president peterson: go ahead. you have 40 minutes. >> good evening, ladies and gentlemen of


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